Nationstar Mortg., LLC v. Sobel

179 A.D.3d 710

113 N.Y.S.3d 560 (Mem)

NATIONSTAR MORTGAGE, LLC, Respondent,

v.Lawrence B. SOBEL, Appellant, et al., Defendants.

2017–02933

Index No. 29764/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 29, 2019

January 8, 2020

Fred M. Schwartz, Smithtown, NY, for appellant.

Sandelands Eyet LLP, New York, N.Y. (Evan B. Magnone and Margaret S. Stefanol of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Lawrence B. Sobel appeals from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated December 5, 2016. The order denied the motion of the defendant Lawrence B. Sobel pursuant to CPLR 5015(a) to vacate two prior orders of the same court, both dated December 21, 2015, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint insofar as asserted against that defendant, to strike his answer, and for an order of reference.

ORDERED that the order dated December 5, 2016, is affirmed, with costs.

The plaintiff's predecessor in interest commenced this action against, among others, the defendant Lawrence B. Sobel (hereinafter the defendant), to foreclose a mortgage on property owned by the defendant. The defendant answered the complaint. Thereafter, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer, and for an order of reference. The defendant failed to oppose the plaintiff's motion. In two orders, both dated December 21, 2015, the Supreme Court granted the plaintiff's motion and referred the matter to a referee to compute the amount due to the plaintiff (hereinafter the December 2015 orders). The defendant subsequently moved pursuant to CPLR 5015(a) to vacate the December 2015 orders. By order dated December 5, 2016, the court denied the defendant's motion. The defendant appeals.

A party seeking to vacate an order entered upon his or her default in opposing a motion for summary judgment must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Santos v. Penske Truck Leasing Co. , 105 A.D.3d 1029, 964 N.Y.S.2d 207 ; Political Mktg., Int'l, Inc. v. Jaliman , 67 A.D.3d 661, 661–662, 888 N.Y.S.2d 552 ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" ( Deutsche Bank Natl. Trust Co. v. Saketos , 158 A.D.3d 610, 612, 72 N.Y.S.3d 167 [internal quotation marks omitted] ). "While ‘law office failure’ may under certain circumstances constitute a reasonable excuse for a default and thus justify the vacatur of a prior determination of the court, there must be detailed allegations of fact which explain the reason for such a failure" ( Morris v. Metropolitan Transp. Auth. , 191 A.D.2d 682, 683, 595 N.Y.S.2d 539 ). Here, the Supreme Court providently exercised its discretion in denying the defendant's motion pursuant to CPLR 5015(a) to vacate the December 2015 orders. The defendant's unsubstantiated and conclusory claim of law office failure and/or neglect by his prior counsel...